Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/34901/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 October 2016
On 1 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Nasreen [B]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: No appearance

DECISION AND REASONS
1. This appeal arises from the decision of the Secretary of State, dated 29 May 2015, to refuse the application of the respondent (hereinafter "the claimant") for leave to remain in the UK on the basis of her private and family life. Her ensuing appeal was heard by First-tier Tribunal Judge Manyarara. In a decision (determined on the papers) that was promulgated on 29 April 2016 the judge dismissed the appeal under the Immigration Rules but allowed it under Article 8 ECHR outside the Rules. That decision is now appealed by the Secretary of State.
2. The claimant did not attend the hearing on 7 October 2016. I am satisfied that the claimant was properly notified of the hearing, and I note that efforts were made to telephone her on the day of the hearing. Having considered the overriding objective I took the view that it was in the interests of justice to proceed with the hearing.
Immigration History and Background
3. The claimant, who is a citizen of Pakistan born on 12 July 1974, entered the UK on 20 November 2008 with leave until 4 February 2011 as a spouse.
4. On 2 February 2011 she applied for indefinite leave to remain as a spouse of a British national partner. Her application was refused on the basis that the marriage was not subsisting and the claimant's appeal of that decision was dismissed. Her appeal rights were exhausted on 19 September 2012 and thereafter she remained in the UK without lawful leave.
5. An affidavit of her husband refers to him and the claimant experiencing serious relationship problems in 2011, with these subsequently being resolved.
6. On 26 November 2012 and then on 16 December 2014 the claimant applied unsuccessfully for leave to remain in the UK outside the Immigration Rules under Article 8 ECHR.
7. In the Secretary of State's decision of 29 May 2015, she first considered whether the claimant could satisfy the requirements of Appendix FM R-LTER 1.1(d). It was accepted that the claimant's partner is a British citizen and that she met the eligibility and suitability requirements such that the matter fell to be determined under Section EX.1(b) of the Rules. The question, therefore, was whether there were insurmountable obstacles to family life continuing with her partner outside the UK.
8. The Secretary of State stated that it would not be unreasonable to expect the claimant's partner to relocate and therefore there were not insurmountable obstacles. The Secretary of State was also not satisfied that the requirements under paragraph 276ADE(1) were met. Nor did she accept that there were exceptional circumstances that would warrant allowing the appeal outside the Rules.
Decision of the First-tier Tribunal
9. The judge first considered the claim under the Immigration Rules, identifying that the relevant issue was whether, pursuant to EX.1(b), there were insurmountable obstacles to family life between the claimant and her British national husband continuing outside the UK.
10. The judge, following the recent Court of Appeal authority Agyarko and Others [2015] EWCA Civ 440 found the evidence did not disclose very serious hardship in relation to family life continuing in Pakistan.
11. The judge then turned to consider Article 8 outside the Rules. He highlighted that the marriage had subsisted for nine years and that as the claimant was a spouse when she entered the UK the relationship was not formed whilst she is in the UK unlawfully. At paragraph 32 the judge stated:
"I find that the likelihood of the appellant being granted entry clearance in this case is strong. She has navigated her way through the suitability and relationship requirements. Although my consideration of this appeal does not extend to consideration of the outcome of any entry clearance application, I find that to request the claimant to return, thereby temporarily disrupting the established family life in this case on a procedural ground, is disproportionate."
Grounds of Appeal and Submissions
12. The grounds of appeal argue that the decision was inconsistent with Chen IJR [2015] UKUT 00189 (IAC) as there was no explanation as to why temporary separation whilst the claimant returns to Pakistan to seek entry clearance would be disproportionate. At the hearing Ms Fijiwala briefly reiterated the arguments made in the grounds of appeal.
Consideration
13. It is well established that in a case such as this an appellant will need to show compelling circumstances in order to succeed in an application for leave to remain outside the Immigration Rules. See SS (Congo) [EWCA] Civ 387.
14. Although the judge, at paragraph [24], correctly identified this requirement, the decision does not describe circumstances which, taken individually or cumulatively, can properly be construed as compelling. Indeed, I cannot discern anything in the decision which comes close to being compelling.
15. Read as a whole, the judge appears to have given three reasons to allow the appeal on the basis that removal of the claimant would be disproportionate. The first is that the claimant and her partner have been in a subsisting marriage for nine years. The second is that the marriage began before the claimant moved to the UK. The third reason given by the judge is that the claimant's removal would be on a "procedural ground" as there is a strong likelihood of her being granted entry clearance.
16. There is no explanation in the decision as to why the judge concluded that there is a "strong" likelihood entry clearance will be granted. There are strict requirements to be met before entry clearance as a partner is granted including the financial thresholds in Appendix FM and evidence to support the same in Appendix FM-SE. I cannot discern from the Tribunal file how the judge could have reached a view, one way or the other, on whether the claimant would succeed in an application for entry clearance as a partner from Pakistan.
17. As made clear in Chen, there will be instances where there are not insurmountable obstacles to family life being enjoyed outside the UK (as the judge found to be the cases in this appeal) but where temporary separation to enable an individual to make an application for entry clearance will be disproportionate. Generally, to succeed in such a case, an applicant will need to show that: (a) the application for entry clearance from abroad would be successful; and (b) there would be significant interference with family life by a temporary removal. See Chen at [39].
18. The claimant has shown neither. Firstly, she did not submit any evidence that would support a finding that entry clearance from abroad would be successful. The burden was on her to show that entry clearance from Pakistan would be granted. She did not discharge that burden.
19. Secondly, the judge has not identified any circumstances to support the view that there will be significant interference with family life arising from a temporary removal of the claimant. Such circumstances could take the form, for example, of children being affected or there being medical or other reasons that would prevent the claimant or her partner travelling to Pakistan. In the absence of any such reasons, it was not open to the judge to find that temporary removal to Pakistan would cause a significant interference to the claimant's family life.
20. Having found the above described material errors of law I remake the decision as follows:
21. The only realistic route by which the claimant could be granted leave to remain under the Immigration Rules is to show she falls within paragraph EX.1(b) of Appendix FM, whereby there are insurmountable obstacles to the relationship with her husband continuing outside the UK. However, she has not submitted any evidence which shows there to be obstacles, insurmountable or otherwise, to the relationship continuing in Pakistan. Accordingly, the claimant cannot succeed under the Immigration Rules.
22. In considering Article 8 outside the Rules I rely on the evidence that was before the First-tier Tribunal (no further evidence having been adduced). That evidence provides only very limited information about the claimant and her circumstances. It shows that she married a British citizen in Pakistan in 2007 and entered the UK in 2008 as his wife with leave until 4 February 2011. She applied, in time, for indefinite leave to remain but was unsuccessful (including on appeal). An affidavit from the claimant's husband indicates the reason for this, as it refers to there being "serious relationship problems in 2011". These problems were subsequently resolved and the relationship is subsisting.
23. Having lived in the UK for eight years as the wife of a British citizen, the claimant undoubtedly has a private and family life in the UK that engages Article 8 ECHR. In these circumstances, given that she cannot succeed under the Immigration Rules, the question to be addressed is whether her removal would be disproportionate. In considering proportionality, regard must be had to the factors in Section 117B of the Nationality, Immigration and Asylum Act 2002 as well as the Court of Appeal case law explaining that for a claim to succeed outside the Rules there needs to be compelling circumstances.
24. Turning to the Section 117B factors, it is not clear from the evidence if the claimant speaks English and is financially independent (subsections (2) and (3)). However, even if I found she was, it would not alter the outcome of the proportionality assessment.
25. Although there is a question as to whether the claimant's relationship could be said to have commenced in 2011 or 2012 (following the reconciliation), I accept that, looked at as a whole, the relationship was established before the claimant entered the UK and therefore at a time when her status was neither precarious nor unlawful. There is therefore no need to give "little weight" to the relationship under subsections (4) and (5).
26. Regard must also be had to Subsection (1), which states that the maintenance of effective immigration controls in the public interest.
27. Even though I give substantial weight to the claimant's relationship with her husband, I am satisfied that her removal would not be disproportionate under Article 8 ECHR. Assessing proportionality is a balancing exercise and the claimant has simply not provided evidence that weighs heavily in her favour. Ultimately, her case amounts to no more than saying she has been in the UK a long time, does not want to leave and her husband would not want to move with her to Pakistan. That falls significantly short of a compelling reason to grant the claimant leave to remain when she is unable to satisfy the requirements of the Immigration Rules.
28. I reject the contention that refusing the claimant's claim is merely a procedural matter or that her appeal should succeed following Chikwamba. As should be clear from the error of law decision, there is no evidence to suggest that she would succeed in an application made from Pakistan; or that, if she would be granted leave to enter from Pakistan, a temporary move to her home country in order to make the application would be a hardship.

Decision

29. The decision of the First Tier Tribunal contains a material error of law and is set aside.

30. I remake the said decision by dismissing the claimant's appeal under both the Immigration Rules and on human rights (Article 8) grounds.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 31 October 2016